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Settlement in Washington State Deaf Prisoners' Lawsuit

Aclass action lawsuit was settled on behalf of deaf and hearing-impaired prisoners in Washington State on September 3, 1998. The settlement agreement obligates the Washington State Department of Corrections to provide qualified sign language interpreters and assistive devices, such as hearing aids and TTY phones, when needed by disabled prisoners in Washington's prisons. The settlement provides that deaf and hearing-impaired prisoners must be allowed access to prison programs and services, such as education, medical care, treatment programs, disciplinary hearings and classification reviews, on an equal basis with non-deaf prisoners.

The case, Duffy v. Riveland, No. C92-1596R & C93-637R (W.D. Wash.), was brought under two federal anti-discrimination laws: the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12115 et seq. Plaintiffs' class in Duffy consisted of inmates in Washington "who are deaf or whose hearing impairment substantially limits a major life activity." Plaintiff deaf prisoners had been required to defend themselves at prison hearings without a qualified interpreter, had been denied access to basic education, were paged over the P.A. system despite their deafness, and sometimes were unable to communicate with the outside world through adequate access to a TTY phone. In the words of a federal judge from a similar case in New York, deaf prisoners lived "in a prison within a prison."

The U.S. Supreme Court ruled recently that the Americans with Disabilities Act (ADA) applies to state prisoners. Pennsylvania Department of Corrections, 118 S. Ct. 1952 (1998) [ PLN Sept. 1998]. The settlement agreement in Duffy is of national interest because it closely follows the ADA requirements.

The Duffy settlement incorporates a new policy on disabled prisoners adopted by the Washington State DOC. In addition to deaf and hearing-impaired prisoners, the policy covers prisoners with mobility, vision, or speech impairments. The main elements of the DOC policy are:

(1) Effective access - Prisons must provide disabled prisoners with "equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity" offered by the prison. To ensure "effective access" prisons must, as needed: (a) make reasonable modifications in policies, practices or procedures; (b) remove barriers to access; or (c) provide auxiliary aids or services. These are often called "reasonable accommodations." In concrete terms, the required accommodations could include: allowing TTY phone users twice as long for phone calls because of the time involved in typing a conversation, putting up visual emergency alarms, modifying the time or location of a treatment program to allow equal participation, or providing hearing aids, Braille texts, or an interpreter. The accommodation or method of assistance requested by the disabled prisoner must be given "substantial consideration" by the prison.

(2) Undue burden - A prison does not have to make an accommodation or provide assistance that would: (a) fundamentally alter the prison's service, program or activity; or (b) cause a significant financial and administrative burden. Likewise, an accommodation that would pose a safety or security threat is not required. Importantly, the "undue burden" analysis is based on the statewide resources the prison system has for the service, program or activity, not just on the resources available in one prison. For example, one would look at the entire state education budget for prisoners when deciding whether it's too costly to provide an interpreter during all or most school classes. If a particular accommodation would create an undue burden, the prison must take other less burdensome steps to provide effective access.

(3) Qualified/interpreter - Someone who can interpret "effectively, accurately, and impartially," both receptively and expressively, and using any necessary specialized vocabulary. The ADA does not require that all interpreters be formally certified; it requires that they be qualified. The policy adopted in Duffy follows the ADA definition and provides that interpreters must also promise to maintain strict confidentiality and that only a certified interpreter can determine whether a proposed interpreter is "qualified."

(4) Assessment and Orientation -A prisoner's disability and the type of accommodations needed for effective access to programs and services must be assessed by persons qualified to make these evaluations. The disabled prisoner must be informed of his or her rights under the ADA, including the right to receive "reasonable accommodations" and to file grievances. Notices of rights are posted in prominent places in all prisons.

$130,000 in Attorney's fees and $6,000 in damages were awarded to Sean Duffy as part of the settlement agreement. Remedies for violations of the ADA and the Rehabilitation Act include a private right of action for damages, injunctive relief, and reasonable attorney's fees and costs to the prevailing party. 42 U.S.C. § 12133; 29 U.S.C. §794a. Attorney's fee caps under the Prison Litigation Reform Act (PRLA) do not apply to cases brought under the Rehabilitation Act or the ADA. 42 U.S. C.§ 1997e(d). However, prisoners are required under the PRLA to exhaust administrative remedies (such as pursuing the grievance procedure within the prison) before filing suit under § 1983 or any federal law.

The Duffy case was litigated jointly by a private and public law firm. The case originally was filed pro se by Mr. Duffy. Leonard Feldman and Felix Luna of Heller, Ehrman, White and McAuliffe subsequently represented him. His case was joined with a suit filed by Charles Atkins, a deaf prisoner represented by David Fathi and Jeff Crollard of Columbia Legal Services. Monitoring of the settlement will occur over the next four years.

The Duffy settlement was modeled after the landmark order and settlement agreement reached in a New York class action suit brought on behalf of deaf and hearing impaired prisoners, Clarkson v. Coughlin, 898 F.Supp. 1019 (S.D. N.Y. 1995). Readers wishing background information on Duffy should review the earlier opinion in Duffy v. Riveland , 98 F.3d 447 (9th Cir. 1996). Relevant federal regulations for the ADA are at 28 C.F.R. § 35. 101 et seq. A copy of the September 3, 1998 Duffy Order, Settlement Agreement, which are unpublished, and the Washington State DOC Policy # 490.050, can be obtained from Columbia Legal Services at: Institutions Project, 101 Yesler Way, Ste. 300, Seattle, WA 98104.

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Related legal case

Duffy v. Riveland